The Pirate Bay will be web-blocked in the Netherlands once again

The Pirate Bay will be blocked by major internet service providers in the Netherlands once again, in the latest development in what is probably the longest running round of legal wrangling over the anti-piracy tactic of web-blocking. ISPs Ziggo and XS4ALL have been told to block the always controversial file-sharing site on a temporary basis pending a final judgement on the case in the country’s Supreme Court.

As previously reported, whereas in most countries ISPs have reluctantly accepted court orders forcing them to block access to copyright infringing websites, net firms Ziggo and XS4ALL decided to fight an injunction to that effect that had been secured by Dutch anti-piracy agency BREIN.

In 2014, a court in the Netherlands sided with the internet firms, ruling that the Pirate Bay web-block that had been put in place by a lower court was “ineffectual” and might “constitute an infringement of [people’s] freedom to act at their discretion”. BREIN then took the matter to the Dutch Supreme Court, which in turn asked the European Courts Of Justice whether European law had any issues with web-blocking, and the possible “infringement of people’s freedom to act at their discretion” it might cause.

Earlier this year European judges basically gave the all-clear for national courts in the European Union to instigate web-blocks on copyright grounds. They also said that they reckoned The Pirate Bay – as well as being liable for ‘contributory infringement’ by facilitating the infringement of others – was also liable for ‘direct infringement’, because linking to torrent files constituted ‘communicating’ copyright protected works to the public.

The judgement was good news for the European music and movie industries, which had already successfully secured web-block injunctions in various countries within the EU, not least the UK where copyright owners have been particularly prolific in requesting blockades against copyright infringing websites. It also arguably increased the liabilities of The Pirate Bay and similar websites under European law.

Back in the Netherlands, the Supreme Court still needs to decide whether forcing Ziggo and XS4ALL to block The Pirate Bay is a proportionate sanction in this case. That decision is still pending. However, in the meantime, on Friday an appeals court decided that the 2014 decision that lifted the earlier web-blocks was now largely obsolete, and therefore said web-blocks should be reinstated with immediate effect, until the Supreme Court has made its final judgement on the matter.

According to BREIN, the latest court ruling states that the 2014 judgement did not give “sufficient weight” to the interests of the copyright owners represented by the anti-piracy group. It had also been wrong to assess the impact of the earlier web-block by looking at overall torrent figures rather than the number of people specifically accessing The Pirate Bay. The new court order then rules that web-blocks can be instigated in the Netherlands.

Says BREIN’s Tim Kuik: “It is good that websites that are obviously harmful and illegal – like The Pirate Bay – can be blocked again in the Netherlands. A very bad time for our culture, when people were free to access these sites, is now happily behind us”.

For now at least. We await the Supreme Court’s final ruling with interest.